Jan 01, 2013

IICLE Family Law Flash Points - January 2013

1. Co-parent of a child born by artificial insemination has a common law claim to custody and visitation of the child. The non-birth mother in a same-sex couple filed a petition for custody and visitation of two children born via artificial insemination after the birth-mother prohibited her from seeing them. The trial court dismissed the petition reasoning that the IMDMA did not give her standing to seek custody or visitation because she was not an adoptive or natural parent. However, the Appellate Court reversed holding that under the facts of this case the non-birth mother had a common law action for child custody and visitation. In its ruling, the Court relied heavily on the Supreme Court case of In re the Marriage of M.J., 203 Ill.2d 526 (2003), which held that public policy should be taken into consideration specifically in artificial insemination cases and that that Illinois recognizes the right of every child to the physical, mental, emotion, and monetary support of both parents. In IRMO M.J., Supreme Court also analyzed the Illinois Parentage Act and held that nothing in the Act prohibited common law actions to establish parental responsibility under these specific circumstances. In re T.P.S. and K.M.S. 2012 Il App (5th) 120, 176.2. Seventh Circuit Court of Appeals overturns District Court’s denial of father’s petition to return children to Australia under ICARA. A father sought return of a couple’s three children from the United States back to Australia pursuant to the International Child Abduction Remedies Act (ICARA). The District Court denied his petition finding that the children’s habitual state of residence had become the U.S. by the time father filed his petition; that he was not exercising his custody rights; and that he had consented to the children remaining in the U.S. permanently. The Seventh Circuit found error with each of these findings and held that (1) there was not enough evidence in the record to support the conclusion that husband and wife arrived in the U.S. with the shared intention of abandoning Australia and establishing a new habitual residence here; (2) that father kept in regular contact with children while they were in the U.S. via Skype and that he requested physical custody for the children’s entire summer vacation and winter break as well as additional visits; and (3) a settlement letter outlining an overall proposal for the entire divorce case was not an unequivocal consent that the children remain in the U.S. Walker v. Walker 2012 WL 5668330.3. State court judgment granting custody does not render a federal cause of action involving the Hague Convention or International Child Abduction Remedies Act (ICARA) moot. While a case involving an action brought by a father pursuant to ICARA and to enforce the provisions of the Hague Convention was pending in federal court, an Illinois state court granted mother sole custody of the children. However, Article 17 of the Hague Convention expressly states that the “the sole fact that a decision relating to custody has been given or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention.” Thus, the treaty qualifies the finality of any state court custody judgment and provides that there is still a live controversy before the federal court. In this case, the mother was not entitled to have the pending federal case dismissed because an Illinois trial court had granted her sole custody. There remained an issue over the children’s habitual state of residence, and therefore it was not yet possible to say which country’s courts had the power to resolve the issue of custody. Walker v. Walker 2012 WL 5668330.4. Trial court properly used Section 505(a) of the IMDMA to modify father’s child support obligations rather than Section 513(a)(2). In a Marital Settlement Agreement (MSA), the parties agreed that father would pay child support until the children were emancipated which was defined as “the child’s reaching age 22, so long as the child is attending college, or completing college or terminating full-time attendance at college, whichever shall occur first”. Handwritten and initialed by both parties on the face of the MSA was the following language: The parties have agreed that the support provision below is in lieu of another other obligation by the father for education support. The trial court correctly applied the guidelines of section 505(a) when granting the mother’s motion to modify child support, rather than Section 513(a)(2) because the unambiguous language of the MSA clearly indicates that child support was to be paid instead of support paid pursuant to Section 513 for post-secondary education expenses. IRMO Razzano, 2012 IL App(3d) 110608.5. Trial court properly reduced maintenance when wife could not substantiate her living expenses and where husband’s income had decreased. In a post-judgment matter where the wife had filed for both an extension and increase in maintenance and the husband filed for a decrease in maintenance, the trial court properly ordered permanent maintenance at a reduced level. The Appellate Court upheld the totality of the trial court’s rulings, including a finding that $10,000 would be sufficient funds to support wife’s needs now that the children were emancipated and then imputing $37,500 to wife in income that she could earn as a social worker. Thus, husband’s monthly obligation to wife was $6,875 which the court awarded as permanent maintenance since husband, as an attorney, would always have a greater earning capacity than the wife. The trial court also found that husband’s income had decreased 24% over a three year period since the judgment was entered. IRMO S.D. and N.D. 2012 IL App(1st) 101876.6. Husband guilty of violating an Interim Order of Protection when he had actual knowledge of the contents of the order. After wife obtained an Interim Order of Protection (OP) against her husband, which prohibited him from contacting her unless it pertained to the children, visitation with the children, or the internet connection that she and the children shared, husband sent her several text messages outside the parameters of the OP. The messages involved a request to retrieve various items from the marital residence, his displeasure with his wife involving an attorney in their legal matters, concert tickets, and a proposed vacation the family could go on together, among other things. Wife reported these text messages to an officer at the police station where the couple exchanged the children for visitation and she pressed charges for the violation. During the criminal jury trial, the trial court refused to present the jury with husband’s non-Illinois pattern jury instructions. The Appellate Court upheld the trial court decision stating that the Illinois pattern instructions adequately stated the law regarding the question of “actual knowledge” of the terms of the order of protection and the husband’s argument that knowledge of the contents of an OP and knowledge that a person is violating that order was a distinction without any real difference. The Court upheld the guilty verdict and 24 months probation. People v. Hoffman, 2012 Il App (2d) 110462.7. Supreme Court grants PLA in Earlywine v. Earlywine, regarding issue of disgorgement of advance payment retainer. We previously reported the Appellate Court decision in Earlywine, on the issue of whether the trial court was permitted to disgorge $4,000 in attorneys’ fees paid to husband’s attorney as an advance payment retainer. The Appellate Court upheld the disgorgement on the grounds that the use of the advance payment retainer frustrated the goal of the leveling of the playing field statute in divorce proceedings. The Supreme Court has granted husband’s Petition for Leave to Appeal.8. Service by Email permissible beginning January 2, 2013. The Supreme Court has amended Rule 11 (SCR 11) to allow for proper service of documents via e-mail if an attorney consents to receive service via e-mail.9. Proposed legislation for integrative family therapy. A bill has passed the Senate and is with the House which would authorize a court to order the parties in a dissolution of marriage action or post-judgment action involving minor children to participate in integrative family therapy. This is defined as a model specifically aimed at high-conflict cases where children have or are at risk for developing pathological conditions, including but not limited to depression, anxiety and personality disorders in the absence of intervention.

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